Terminating the Employment Relationship

salary. The fire captain petitioned for a writ of mandate. The court granted the petition and the court of appeal affirmed. The city did not limit the use of sick leave and in fact, did not define “sickness.” Thus, common usage would extend sick leave to sickness or injury arising from employment. Since it extended to industrial injury, the fire captain was entitled to exhaust sick leave prior to the effective date of retirement. The fact that the sick leave policy prohibited the cash-out of any accumulated sick leave was irrelevant to the ability of the fire captain to exhaust his sick leave prior to the effective date of retirement. Andersen v. Workers’ Compensation Appeals Board 240 A city maintained a sick leave policy that allowed employees to use sick leave to attend to medical appointments for non-service related illness or injury. Thus, employees with industrial injuries had to use his or her vacation time to attend medical appointments. An industrially-injured employee brought an action for discrimination under Labor Code section 132a. The court held that the city’s policy was discriminatory and unlawful. If the city provides sick leave to its employees, it cannot refuse to permit its use for industrially-related medical appointments when non-industrially injured workers are not so restricted.

b. If the Disability Retirement Application Is Denied, Must the Employee Be Retained or Reinstated?

i. Disability Discrimination, Reasonable Accommodation and the Interactive Process The ADA, the Rehabilitation Act of 1973, 241 and FEHA prohibit discrimination in employment because of an applicant or employee’s disability. An employer engages in unlawful discrimination if it: (1) regards or perceives the employee as disabled; (2) the employee is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and (3) the employee is subjected to an adverse employment action (e.g. termination) because of the employee’s actual or perceived disability. 242 In addition, as explained in Section 4 above, generally, an employer is required to engage in the interactive process with the employee and to provide a reasonable accommodation that would allow an employee to perform the essential functions of the job, unless the accommodation would be an undue burden. 243 An employer must be conscious of its obligations under the ADA and FEHA both before and after an application for disability retirement is filed. Simply because an employee files an application for disability retirement does not mean an employer is relieved of its obligation to engage in the interactive process and to provide a reasonable accommodation that would allow the employee to perform the essential functions of the job. Indeed, if an employer can provide permanent light duty modifications as a reasonable accommodation, the employee would not be entitled to a disability retirement. 244

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 69